Purdom v. Morgan et al

MOTION for Summary Judgment

W.D. Ark.May 8, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION MITCHELL PURDOM PLAINTIFF VS. NO. 16-cv-3072 TLB ROGER MORGAN in his official capacity as DEFENDANTS City Attorney for Mountain Home PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ORAL ARGUMENT REQUESTED] Plaintiff Mitchell Purdom hereby moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rules 7.2 and 56.1 of the Local Rules of the U.S. District Court for the Western District of Arkansas. In support of this Motion, Plaintiff is filing a Brief in Support of his Motion for Summary Judgment and a Statement of Undisputed Material Facts. For the reasons provided in the supporting Brief, Plaintiff contends that there is no genuine disputed issue as to any material fact and that he is entitled to judgment as a matter of law. Accordingly, Plaintiff respectfully requests that this Court grant Plaintiff’s Motion for Summary Judgment and issue an order (i) declaring that § 18-16-101, both in its current form and as amended by Act 159, violates the state and federal constitutions and (ii) permanently enjoining Defendant Morgan from enforcing either version of the statute against him. Plaintiff respectfully requests oral argument on this Motion. Case 3:16-cv-03072-TLB Document 53 Filed 05/08/17 Page 1 of 2 PageID #: 254 - 2 - Respectfully submitted this 8th day of May, 2017, Mitchell Purdom By: /s/ Jason Auer (Ark. Bar No. 2011304) LEGAL AID OF ARKANSAS 1200 Henryetta Street Springdale, AR 72762 Telephone: (800) 967-9224 ext. 6318 jauer@arlegalaid.org /s/ Amy Pritchard (Ark. Bar No. 2010058) UALR Bowen Legal Clinic 1201 McMath Avenue Little Rock, AR 72202 Telephone: (501) 324-9966 apritchard@ualr.edu /s/ Brandon Buskey* (AL ASB2753-A50B) American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th FL New York, NY 10004 (212) 549-2654 bbuskey@aclu.org Attorneys for Plaintiff Case 3:16-cv-03072-TLB Document 53 Filed 05/08/17 Page 2 of 2 PageID #: 255 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION MITCHELL PURDOM PLAINTIFF VS. NO. 16-cv-3072 TLB ROGER MORGAN in his official capacity as DEFENDANTS City Attorney for Mountain Home BRIEF IN SUPPORT OF PLAINTIFF PURDOM’S MOTION FOR SUMMARY JUDGMENT INTRODUCTION Arkansas’ criminal eviction statute, Ark. Code Ann. § 18-16-101, enables private landlords to enlist prosecutors in a process that uses criminal sanctions to coerce tenants into abandoning their homes, all to resolve what every state in the country-including Arkansas- recognizes as a civil property dispute. Plaintiff Mitchell Purdom asks this Court to enter a summary judgment declaring that § 18-16-101, both in its current form and as amended by Act 159, violates the state and federal constitutions. Mr. Purdom further requests that the Court enter a permanent injunction enjoining Defendant Morgan from enforcing either version of the statute against him. STATEMENT OF UNDISPUTED MATERIAL FACTS1 Facts Relating to Plaintiff Purdom Mitchell Purdom’s sole source of income is Social Security Disability in the amount of $1,200 a month. Purdom and his landlords, Don and Judy Lewis, entered into a 12-month written lease agreement for a house located at 949 Tanglewood, Mountain Home, Arkansas on 1 Because Defendant Morgan failed to file an Answer, all factual allegations in the Amended Complaint are considered admitted. Fed. R. Civ. P. 8(b)(6). Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 1 of 24 PageID #: 256 - 2 - November 3, 2015. The agreed upon monthly rent payment was $750.00. The rent was due by the third day of each month. Purdom moved into the house on or about November 3, 2015. Paragraph Six of the lease agreement states that the tenant is not allowed to have a pet. Purdom is diagnosed with severe depression. In order to cope with his depression, Purdom takes several medications and attends a weekly therapy session with a clinical psychologist. On April 8, 2016, Purdom’s clinical psychologist, Phillip W. Brown, Ph.D., drafted a letter recommending that Purdom keep an emotional support dog wherever he lives. According to Dr. Brown, Purdom needs the dog to help cope with depression brought on by feelings of social isolation. Purdom gave Dr. Brown’s letter to the Lewises on April 8, 2016. The Lewises refused to accept the letter and told Purdom that he was not allowed to have a dog. In May 2016, Purdom contacted the Arkansas Fair Housing Commission (“AFHC”) and filed a complaint against Lewises for their failure to grant his reasonable accommodation request. The AFHC began investigating shortly thereafter. After the Lewises learned of the Fair Housing investigation, they approached Purdom with an amended lease agreement on June 2, 2016. The amended lease agreement stated Purdom would be allowed an emotional support animal if he paid a non-refundable $500.00 pet deposit. When Purdom refused to sign the amended Lease Agreement or pay the $500.00 pet deposit, the Lewises immediately handed Purdom a 10-day notice to vacate pursuant to Ark. Code Ann. § 18-16-101. Purdom tendered his rent payment for June 2016 in early May. The Lewises accepted the payment and were to hold Purdom’s check until rent became due on June 3, 2016. However, the Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 2 of 24 PageID #: 257 - 3 - Lewises returned Purdom’s check simultaneously as they served Purdom with the 10-day notice to vacate on June 2, 2016. Purdom filed the original Complaint in this action on June 13, 2016. At the time of the filing of the original Complaint, Purdom was current on his rent. Purdom vacated the property on August 8, 2016, nearly two months after the notice-to-vacate period.2 The Mountain Home City Attorney prosecutes tenants under the Criminal Eviction Statute, and Mountain Home’s district court regularly hears criminal eviction cases. Between May 1, 2015 and June 9, 2016, the Mountain Home division of Baxter County District Court heard 25 prosecutions of criminal eviction cases. Facts Relating to Arkansas’ Criminal Eviction Statute Arkansas is the only state in the country that criminalizes the eviction process.3 Under § 18-16-101 of the Arkansas Code, a tenant who is alleged to be one day late on rent can be charged with and found guilty of a misdemeanor if the tenant has not vacated the residence after 10 days’ notice. Ark. Code Ann. § 18-16-101 (b). The class of misdemeanor, and thus the penalty the defendant faces, varies according to whether the defendant pays a registry fee to the court. Tenants who plead not guilty and remain in the leasehold premises are required to deposit the disputed rent amount into the registry of the court, and they must continue making rental payments into the registry throughout the proceedings. Ark. Code Ann. § 18-16-101(c)(1). If a defendant is subsequently convicted and has paid the required fee, the defendant is guilty of an 2 Plaintiff Purdom named the Lewises as defendants in the original Complaint. Plaintiff and the Lewises settled those claims with prejudice prior to Plaintiff’s filing of his Amended Complaint. 3 Human Rights Watch, Pay the Rent or Face Arrest: Abusive Impacts of Arkansas’s Draconian Evictions Law 1 (Feb. 2013) [hereinafter “HRW Rep.”]. http://www.hrw.org/sites/default/files/reports/us0113arkansas_reportcover_web.pdf; Non- Legislative Commission for the Study of Landlord-Tenant Laws, Report, 35 U. Ark. Little Rock L. Rev. (2013) [hereinafter “Comm’n Rep.”] Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 3 of 24 PageID #: 258 - 4 - unclassified misdemeanor and must also pay a statutory fine of $25 per each day the tenant failed to vacate the leasehold premises. Ark. Code Ann §18-16-101(b)(2); Ark. Code Ann. § 5-4- 401(b)(4). However, if a convicted defendant has not paid the required fee, then the tenant is guilty of a Class B misdemeanor, which carries a sentence of up to 90 days, along with a fine of up to $1000. Ark. Code Ann. §18-16-101(c)(3); Ark. Code Ann. § 5-4-401(b)(2). When originally enacted in 1901, the statute authorized a variable fine of between $1 and $25 for each day the tenant failed to vacate. See Duhon v. State, 299 Ark. 503, 505 (Ark. 1989). In 2001, the Arkansas General Assembly changed the fee to a flat $25 per day, added the pre- adjudication fee, and defined a Class B misdemeanor for defendants who do not pay that fee. Since this amendment, several state trial courts have declared the statute unconstitutional, which has substantially decreased enforcement of the statute across the state. In 2017, after the judgments invalidating the criminal eviction statute, the Arkansas General Assembly partially amended § 18-16-101, re-adopting the 1901 version, while continuing to criminalize the civil eviction process. Thus, Act 159 of 2017 eliminated the registry requirement and the Class B misdemeanor for failing to pay the registry fee. However, Act 159 again authorizes a separate criminal offense for each day a tenant fails to vacate the property. For each offense, the statute authorizes the judge to impose a fine between $1 and $25. The statute does not cap or otherwise limit either the number of convictions or the total fines a defendant may face for remaining on the property after a notice to vacate. Act 159 is scheduled to go into effect on July 31, 2017. It does not contain any provision applying its terms retroactively to conduct committed before its effective date. Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 4 of 24 PageID #: 259 - 5 - SUMMARY JUDGMENT STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. As this Court recently recognized, “in ruling on a motion for summary judgment, the Court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter, but rather should simply determine whether a reasonable jury could return a verdict for the nonmoving party based on the evidence. Knox v. Livermore, No. 5:15-CV-5035, 2016 WL 5339692, at *2 (W.D. Ark. 2016) (citing Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996)) (quotations omitted). ARGUMENT I. CLAIMS BROUGHT AGAINST THE CURRENT FAILURE TO VACATE STATUTE As explained below, Ark. Code Ann. § 18-16-101 violates numerous bedrock constitutional guarantees. By conditioning jail time on an individual’s ability to pay an unsubstantiated fee, the statute violates the state and federal bar on debtors’ prisons; by forcing individuals to pay a registry fee to avoid harsher criminal charges, the statute impermissibly chills the state and federal constitutional rights to a fair trial; and by imposing all of these burdens on a criminal defendant without basic procedural protections, the statute violates the bedrock guarantee of due process in the state and federal constitutions. The Court should strike down this law and forever enjoin its enforcement in Mountain Home. Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 5 of 24 PageID #: 260 - 6 - A. The Statute Violates Plaintiff’s Right to Be Protected from a Debtors’ Prison Outcomes in the criminal justice system cannot turn on an individual’s ability to purchase them. See Griffin v. Illinois, 351 U.S. 12 (1956) (plurality opinion) (state may not condition criminal defendant’s right to appeal on ability to pay for trial transcript); see also id. at 19. (“[T]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has”). Specifically, a defendant cannot be jailed for being too poor to pay a fee. See Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full) (quotations omitted); Bearden v. Georgia, 461 U.S. 660, 667 (1983) (individual cannot have his probation revoked for being too poor to pay restitution). This precedent establishes the federal constitutional ban on “debtors’ prisons.” For the indigent tenant who proclaims her innocence but remains in his home, Arkansas’s failure to vacate statute runs afoul of this ban. The statute allows an individual to be jailed for failing to pay the registry fee without any determination of whether the individual can afford the fee. The statute thus unconstitutionally authorizes individuals to be incarcerated solely because of their poverty, and the Court must declare it invalid under federal law. Section 18-16-101 of the Arkansas Code violates Arkansas’s constitutional ban on debtors’ prisons as well. The Arkansas Constitution states that “No person shall be imprisoned for debt in any civil action . . . unless in case of fraud.” Ark. Const. Art 2, § 16. The Arkansas Supreme Court has twice struck down statutes that criminalized a non-fraudulent breach of contract. State v. Riggs, 305 Ark. 217 (1991) (striking down statute criminalizing contractor’s failure to pay for materials where statute only required knowing or willful failure to pay); Peairs Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 6 of 24 PageID #: 261 - 7 - v. State, 227 Ark. 230 (1957) (striking down statute criminalizing a contractor’s failure to discharge a laborer’s or materialman’s lien without element of fraud). Like the statutes in Peairs and Riggs, Ark. Code Ann. § 18-16-101 unconstitutionally criminalizes the non-payment of a civil debt. The statute conditions jail time on a defendant paying to the court registry “a sum equal to the amount of rent due on the premises.” Ark. Code Ann. § 18-16-101(c)(1). The registry is nothing more than a means of collecting a civil debt, which is made plain by the fact that if the defendant pays into the registry and is convicted, the clerk must remit the registry fee to the landlord. Ark. Code Ann. § 18-16-101(c)(2)(B). Because the statute allows for imprisonment on the failure to pay this debt in the absence of willfulness or fraud, it authorizes a debtors’ prison in contravention of the United States Constitution and Article 2, § 16 of the Arkansas Constitution. B. Ark. Code Ann. § 18-16-101 Impermissibly Chills Plaintiff’s Constitutional Right to a Fair Trial. Plaintiff is entitled to summary judgment on his claim that the current criminal eviction statute impermissibly chills the constitutional right to a fair trial. Statutes that unduly chill the exercise of a constitutional right violate the federal constitutional right to due process. United States v. Jackson, 390 U.S. 570, 582 (1968); Stump v. Bennett, 398 F.2d 111, 120-21 (8th Cir. 1968) (“Any deterrent to the right to be heard in full and to offer evidence in defense of life or liberty violates the oldest and deepest-rooted foundation of due process.”). In Jackson, the United States Supreme Court found that the “inevitable effect” of a state statute reserving the death penalty only for defendants who went to trial, but not for those who pled guilty, was to “discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” Jackson, 390 U.S. at 581. Jackson’s rationale has been followed by a number of courts in a variety of contexts. See, e.g., United Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 7 of 24 PageID #: 262 - 8 - States v. Mitchell, 30 F.3d 1493, 1994 WL 399152 (5th Cir. 1994) (waiver of right to jury trial in exchange for release on bond violates Jackson); United States v. Porter, 513 F. Supp. 245, 249 (M.D. Tenn. 1981) (statute imposing potential fine of $500 and up to six months incarceration for bringing an unleashed dog onto a federal park, but permitting defendants who pleaded guilty to forfeit a ‘bond’ worth $15 violates Jackson); Scharf v. United States, 606 F.Supp. 379 (E.D. Va. 1985) (finding $25 assessment unconstitutional because it was imposed only on those who exercised their right to trial). The relevant test is whether the statute’s deterrent effect on exercising the constitutional right is “unnecessary and therefore excessive.” Jackson, 390 U.S. at 582. Arkansas’s failure to vacate statute impermissibly chills a tenant’s due process right to trial. On the threat of incarceration, the statute coerces tenants to choose among: (1) vacating the premises and their possessory property interests in the leasehold; (2) pleading guilty at the outset and facing a lower possible penalty; (3) asserting their innocence and remaining in the residence while paying a hefty registry fee with continuing down payments on the right to trial; or (4) asserting their innocence and remaining in the residence without paying into the registry and risking 90 days of incarceration plus a $1,000 fine. These exactions on Plaintiff, in order to secure his constitutional rights to a fair trial, are unnecessary and excessive. First, although the purpose of the criminal prosecution is to determine if the tenant improperly failed to vacate, the statute pressures Plaintiff and other tenants into the “anomalous situation” of leaving their homes before the state has been put to its burden of establishing guilt beyond a reasonable doubt. See Stump, 398 F.2d at 120 (invalidating “anomalous situation” of requiring criminal defendants to prove alibi by preponderance of evidence). This conundrum is made untenable by the statute’s failure to require the landlord to Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 8 of 24 PageID #: 263 - 9 - hold the tenant’s lease until trial is completed, potentially leaving innocent tenants homeless despite an acquittal. Further, requiring a registry fee of tenants unwilling or perhaps unable to vacate is impermissibly burdensome. There is no relationship between Plaintiff’s or other tenants’ payment of the registry fee and whether they should be incarcerated for failing to vacate. See Smith v. Bennett, 365 U.S. 708, 710 (1961); Bearden, U.S. 660 at 673. To illustrate, an innocent tenant wrongfully accused of missing a rental payment may not be able to afford a second payment for the same month to satisfy the registry; thus, the tenant’s innocence would paradoxically expose her to more jail time. Or, a tenant may be able to make an initial registry payment but miss subsequent registry payments due to unforeseen economic hardships. The tenant would nonetheless face 90 days in jail, due solely to her poverty. Yet, a tenant accused of precisely the same conduct who can afford the registry fees would face no jail time. The result is that tenants are threatened with jail, not for failing to vacate, but for failing to compensate the landlord. Quite naturally, the tenant who cannot “pay up” will most likely give up. See Comm’n Rep. at 16 (noting risk that the statute “victimizes the poor”). Taken together, these coercive pressures against Plaintiff and other tenants exercising the constitutional right to fair trial are unacceptable in a system that values the presumption of innocence. Taylor v. Kentucky, 436 U.S. 478, 483 (1978) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). Outcomes under this regime are inevitably coerced and inherently unreliable. Porter, 513 F. Supp. at 249 (M.D. Tenn. 1981) (“The hearty (or foolish) souls who venture to trial face substantial penalties on the exercise of that right, since they face penalties so disparate that most Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 9 of 24 PageID #: 264 - 10 - reasonable people would have pleaded guilty, without regard to actual guilt.”). The statute’s unconstitutional chilling effect requires its invalidation. C. Ark. Code Ann § 18-16-101 Violates Plaintiff’s Right to Due Process Under the State and Federal Constitutions Because the Statute Provides No Hearing Prior to Requiring a Registry Fee. The failure to vacate statute requires a tenant who wishes to enter a plea of “not guilty” to first pay the amount that he is alleged to owe into the registry of the court. Ark. Code Ann. § 18- 16-101(c)(1). If the tenant does not pay the alleged amount and is later convicted, he is guilty of a more serious crime. Ark. Code Ann. § 18-16-101(c)(3). The coercive threat of incarceration is effectively a seizure of the registry fee from the tenant. Upon conviction, any money deposited into the registry is turned over to a third party creditor, the landlord. Ark. Code Ann. § 18-16- 101(c)(2)(B). Especially given the presumption of innocence that protects the accused throughout a criminal proceeding, a statute that compels a tenant charged with a crime to pay money before a finding of guilt beyond a reasonable doubt raises serious due process concerns. “[W]hen a creditor claims to be owed a sum of money, neither federal nor state governments should employ or offer procedures to compel payment of such amounts, until after certain procedural protections have been followed. This is the essence of procedural due process.” Carol R. Goforth, Arkansas Code § 18-16-101: A Challenge to the Constitutionality and Desirability of Arkansas’ Criminal Eviction Statute, 2003 Ark. L. Notes 21. The United States Supreme Court has issued a string of decisions regarding the process due when the government assists a creditor prior to a civil trial. In Sniadach v. Family Finance Corp., the Court held that, absent exigent circumstances, it was impermissible to garnish the wages of a debtor prior to a hearing. 395 U.S. 337 (1969). Similarly, in Connecticut v. Doehr, the Court held unconstitutional a state statute authorizing Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 10 of 24 PageID #: 265 - 11 - pre-judgment attachment of real estate prior to notice and a hearing even though the statute required a post-attachment hearing. 501 U.S. 1 (1991). See also Fuentes v. Shevin, 407 U.S. 67 (1972) (requiring a prior hearing in cases involving replevin). Sniadach, Doehr, and Fuentes collectively stand for the proposition that a hearing is required before a debtor can be forced to cede a property interest to a creditor. Other procedural safeguards, such as a neutral magistrate that assesses the validity of the affidavit, may also adequately protect the debtor in some cases. See generally North Georgia Finishing, Inc. v. Di- Chem, Inc., 419 U.S. 601 (1975); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (prosecutor is not a neutral official qualified to determine probable cause). However, Ark. Code Ann. § 18- 16-101 contains no procedural protections whatsoever for the tenant. There is no hearing prior to the tenant having to deposit the amount of rent with the court, and no neutral magistrate passes judgment on the validity of the affidavit prior to the court seizing the registry fee. The absence of these protections makes it “possible for landlords to make false representations, simply to evict the tenant.” Comm’n Rep. at 15; HRW Rep. at 24 (with lack of due process protections “unscrupulous landlords and others can turn prosecutors, courts, and law enforcement agencies into agents of retribution against people who they know have not actually violated the law”). Furthermore, Ark. Code Ann. § 18-16-101 infringes on fundamental property and liberty interests. Prior to any hearing in a criminal prosecution, an innocent tenant must choose between abandoning her home and paying a registry fee to avoid the threat of incarceration. These deprivations require a heightened level of procedural due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 (1972). By failing to require any pre-deprivation process before a court seizes the registry fee from the defendant, the statute violates the due process guarantees of the state and federal constitutions. Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 11 of 24 PageID #: 266 - 12 - II. CLAIMS BROUGHT SOLEY AGAINST THE AMENDED FAILURE TO VACATE STATUTE The failure to vacate statute is also unconstitutional in its amended form. As set forth below, Plaintiff Purdom cannot be prosecuted under Act 159 because it does not apply retroactively to his case, and, if it did, such retroactive application would violate the prohibition against ex post facto laws. Further, by allowing unlimited separate convictions and fines without any limiting standards, the statute violates due process by chilling the right to trial and encouraging arbitrary enforcement. A. The Amended Statute Does Not Apply Retroactively to Conduct that Predates Its Effective Date. Plaintiff is entitled to summary judgment on his claim that the Defendant Morgan cannot prosecute him under Act 159 because the law only applies prospectively. The rule in Arkansas is clear. Unless the legislature expressly provides otherwise: When all or part of a statute defining a criminal offense is amended or repealed, the statute or part of the statute that is amended or repealed remains in force for the purpose of authorizing the prosecution, conviction, and punishment of a person committing an offense under the statute or part of the statute prior to the effective date of the amending or repealing act. Ark. Code Ann. § 5-1-103(e). See also Arkansas Dep’t of Correction v. Williams, 357 S.W.3d 867, 871 (Ark. 2009). Act 159 does not contain any provision applying its new terms retroactively. Thus, it can only apply prospectively to failure to vacate offenses committed after its effective date.4 4 See, e.g., Bagwell v. State, 53 S.W.3d 520, 523-24 (Ark. 2001) (holding that state could not invoke criminal statute that was not in effect at the time of the offense unless statute contained retroactivity clause); State v. Williams, 868 S.W.2d 461, 465-66 (Ark. 1994) (rejecting criminal Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 12 of 24 PageID #: 267 - 13 - Plaintiff Purdom allegedly violated the criminal eviction statute in June 2016, over a year prior to the anticipated July 31, 2017, effective date of Act 159. Therefore, under Arkansas law, Defendant Morgan can only prosecute Plaintiff Purdom under the current version of § 18-16- 101, which was in effect in June 2016, and Morgan cannot prosecute Purdom under Act 159 once that law becomes effective. B. Retroactive Application of the Amended Statute Would Violate the Prohibition Against Ex Post Facto Laws. If the Court determines that Act 159 is retroactive and that Defendant Morgan can prosecute Plaintiff Purdom under the Act once it becomes effective, Plaintiff Purdom is entitled to summary judgment on his claim that Act 159 violates the prohibition against ex post facto laws. The Ex Post Facto Clause prohibits any law that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798); U.S. Const. art. 1, § 9, cl. 3. There is no question that Act 159 increases the punishment Plaintiff Purdom faces under Section 18-16-101. At the time Plaintiff Purdom allegedly violated the criminal eviction statute in June 2016, the law authorized a single conviction for failing to vacate, regardless of the number of days a tenant failed to vacate. The maximum fine for an undesignated misdemeanor conviction under the statute was $100. See Ark. Code Ann. § 5-1-108. Act 159 now authorizes a new conviction for each day a tenant fails to vacate and a variable fine between $1 and $25 for defendant’s attempt to invoke sentencing statute not in effect at time of offense that did not expressly apply retroactively); see also Steward v. Statler, 266 S.W.3d 710, 713 (Ark. 2007) (“Generally, retroactivity is a matter of legislative intent, and unless it expressly states otherwise, we presume the legislature intends for its laws to apply only prospectively.”); Bolin v. State, 459 S.W.3d 788, 791 (Ark. 2015) (“Only when the General Assembly expressly provides that an act should be applied retroactively will we do so.”). Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 13 of 24 PageID #: 268 - 14 - each offense. It thus exposes a defendant to multiple convictions for what previously constituted a single offense, while removing any statutory cap on the total fine a defendant faces. The impact of these changes is readily apparent in this case. Plaintiff Purdom vacated the property in question on August 8, 2016, nearly 60 days after the notice-to-vacate period. That means, instead of a single conviction and a maximum fine of $100, Plaintiff would face 60 separate convictions and a maximum combined fine of $1,500 if the Court allows Plaintiff to face prosecution under the new statute. Because a prosecution under Act 159 would objectively disadvantage Plaintiff Purdom, the statute constitutes an ex post facto law. C. Act 159 Impermissibly Chills the Due Process Right to Trial. Plaintiff Purdom is entitled to summary judgment on his claim that Act 159 impermissibly chills Plaintiff’s due process right to trial. United States v. Jackson, 390 U.S. 570, 582 (1968); Stump v. Bennett, 398 F.2d 111, 120-21 (8th Cir. 1968) (“Any deterrent to the right to be heard in full and to offer evidence in defense of life or liberty violates the oldest and deepest-rooted foundation of due process.”). As explained above, Section I.B., supra, the relevant test is whether the statute’s deterrent effect on the constitutional right is “unnecessary and therefore excessive.” Jackson, 390 U.S. at 582. Act 159 chills the right to trial by increasing without limit the number of convictions and total fines faced by those who maintain their innocence, precisely because they elect to plead not guilty and for as long as they insist on a trial. Outside of the conspiracy context, it is rare that a criminal law would allow the state to seek additional charges against an individual for a single course of conduct after the initial charge and after the individual has pleaded not guilty. This anomaly results in part from the fact that Act 159 lacks a mechanism for actually evicting the tenant-a remedy the landlord would have to obtain in civil court. The Act instead Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 14 of 24 PageID #: 269 - 15 - constructively evicts tenants by instilling the fear of escalating criminal sanctions to make them abandon their homes. Absent any limitation on the number of convictions a prosecutor may pursue in this thinly-veiled effort to evict tenants, outcomes under the statute will be dictated by the vagaries of the criminal process. Factors such as how long it takes the landlord to seek a summons, the amount of time for the sheriff’s office to serve the summons, the date of the initial appearance, the date and length of trial-all factors outside of the tenant’s control-will ultimately decide the potential number of charges and fines. This regime forces tenants who want their day in court to grapple with the fact that, if they are subsequently found guilty, they will be charged arbitrarily for time they protested their innocence. Meanwhile, though Act 159 proscribes an unclassified misdemeanor, its lack of a total maximum fine for the same course of conduct may effectively raise the class of misdemeanor fine for which the tenant is liable. For example, if the process takes twenty days, at $25 a day the tenant charged with the unclassified misdemeanor would face a fine of $500, the maximum for a Class C misdemeanor. See Ark. Code Ann. § 5-4-201(b)(3). Twenty more days would result in a Class B misdemeanor. See Ark. Code Ann. § 5-4-201(b)(2). Given these pressures, the tenant’s willingness to contest the charges would vary inversely with the length of the pretrial process, rather than his or her actual guilt. Thus, just like the current version, the Act pressures innocent tenants into either abandoning the very home in which they claim a possessory interest or pleading guilty to avoid the possibility of mounting convictions and an exorbitant total fine. Because the statute removes the possibility of jail time, it also eliminates defendants’ state and federal rights to counsel. Scott v. Illinois, 440 U.S. 367 (1979); Ark. R. Crim. P. 8.2(b). The fact that indigent tenants, deprived of an advocate to help them evaluate viable defenses, must make such dire decisions as whether Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 15 of 24 PageID #: 270 - 16 - to protest their innocence or move out of their home-all as their charges and potential fines mount every day-only exacerbates the statue’s chilling effect. D. Act 159 Violates the Constitutional Guarantee of Due Process. The Court should enter summary judgment in favor of Plaintiff Purdom on his claim that Act 159 violates core precepts of due process because its lack of standards for determining a defendant’s ultimate culpability will inevitably cause arbitrary enforcement. In this context, a criminal statute is unconstitutionally vague if it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). The Court’s vagueness doctrine consists of two separate but related concepts: 1) fair notice and 2) adequate standards. The fair notice component protects against imprecisely drawn statutes that “trap the innocent” by providing inadequate notice of prohibited conduct. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A statute need not account for every factual contingency, but it must set forth its terms with sufficient definiteness so that individuals facing potential criminal sanctions are not forced to speculate as to its meaning. City of Chicago v. Morales, 527 U.S. 41, 58 (1999) (plurality opinion) (citing Lanzetta v. New Jersey, 306 U.S. 451, 453, (1939)). The doctrine’s second component mandates that legislative bodies “establish minimal guidelines to govern law enforcement” to prevent “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 357-58 (quoting Smith v. Goguen, 415 U.S. 566, 574-75 (1974)) (internal quotation marks omitted). Statutes must effectively cabin law enforcement’s discretion to prevent the oppression of unpopular groups or people. Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 16 of 24 PageID #: 271 - 17 - The failure to vacate statute, as amended, violates these principals of vagueness by failing to place any constraints on the number of convictions or total fines a defendant faces under the statute. This omission is exacerbated by the fact that the statute does not contain any time limits-separate from the statute of limitations and speedy trial provision-for filing a complaint or adjudicating the charges. The statute also lacks any mechanism for a tenant independently to “stop the clock” on additional charges while the case is pending. Ironically, this predicament is worse for defendants than under the previous version of the statute, which recognized failing to vacate as a single course of action and authorized a single conviction. And despite the registry fee’s myriad constitutional infirmities, paying it at least provided an objective cutoff for determining the number of days for which a court could fine a convicted defendant. This statutory scheme is readily vulnerable to arbitrary outcomes and abuse. As explained above, Section I.B. & II.C, supra, any delay in the criminal process-whether by the sheriff serving a summons, the court scheduling preliminary proceedings and the trial, or the parties seeking continuances-however benign, could result in a defendant facing additional charges for the same course of conduct. Because the time for adjudications does and inevitably will continue to vary across the state, the number of charges a defendant will face may vary, not as a function of a defendant’s culpability, but as a function of geography, court congestion, or law enforcement priorities. Unfortunately, it is likely that not all of the variation will be benign. The absence of standards limiting the impact of case delay effectively grants judges and prosecutors unchecked discretion over charging and sentencing decisions. Prosecutors are free to charge or threaten as many or as few charges as warranted by delay, whether in service of mitigating the harms of prosecution or stacking charges to push a defendant into a plea bargain. Similarly, judges can Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 17 of 24 PageID #: 272 - 18 - use or threaten the variable fine per conviction to adjust the total fine for a defendant’s culpability, to coerce the defendant into a plea, or to punish more severely a defendant who rejected a plea. The “vast amount of discretion” that Act 159 grants to Arkansas law enforcement in failure to vacate prosecutions is fatal to the law’s design. See Morales, 527 U.S. at 63 (quotations omitted). While the vagueness doctrine typically focuses on arbitrary enforcement by state officials, Act 159 additionally opens itself to abuse by private landlords attempting to evict tenants. To illustrate, the statute of limitations for a misdemeanor under Act 159 is one year. Ark. Code Ann. § 5-1-109(3). Thus, an unscrupulous landlord has ample leeway to delay filing a complaint to maximize the number of convictions the tenant faces once the prosecution commences. Withholding a complaint would thereafter become one of the landlord’s most effective tools to force a tenant off the property. The landlord could use this tactic even if he accepted a late payment from the tenant but still wanted to remove the tenant for other, perhaps improper reasons, such as retaliation for a complaint of discrimination. Imagine, then, the confusion facing a tenant who wishes to contest failure to vacate charges. A central aim of the vagueness doctrine is to require that criminal statutes provide enough clarity “so that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.” Connally v. General Const. Co., 269 U.S. 385, 393 (1926). Act 159 provides no such clarity, as it leaves defendants uncertain as to whether the very act of pleading not guilty and staying in their residence may itself be criminal, and, if so, the Act deprives defendants of any advance notice of the potential extent of their culpability for asserting their innocence. Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 18 of 24 PageID #: 273 - 19 - An additional feature of the Act must be noted in this regard. As under the previous statute, the first section of the Act declares that “[a]ny person . . . who shall refuse or fail to pay the rent therefor when due according to contract shall at once forfeit all right to longer occupy the dwelling house.” Ark. Code Ann. § 18-16-101(a). Unlike the next section, which authorizes a misdemeanor conviction for those who thereafter “willfully refuse to vacate,” Ark. Code Ann. § 18-16-101(b)(1), the first section contains no scienter requirement. The statute thereby appears to terminate a tenant’s right to remain on the property if she is one day late on rent, regardless of the reason. However, the statute is unclear on whether its termination of a tenant’s right to remain for failing to pay survives an acquittal for failure to vacate. Because the two sections address different conduct-failing to pay versus failing to vacate-this anomalous situation might occur if, for example, the tenant admits to refusing to pay rent under the contract, but successfully asserts as a defense that she had a “claim of right” to remain on the property. See Poole v. State, 428 S.W.2d 628, 1226 (Ark. 1968) (recognizing claim of right defense). Because of this statutory framework, the tenant who wishes to contest the charges has no means to evaluate whether she should remain in the residence. The tenant may feel compelled by Section A to leave the property, even if she believes she has a viable defense under Section B. But if the tenant does leave, the statute provides no mechanism to force the landlord to allow her to return if the tenant is later acquitted.5 If the tenant decides to stay, she faces the uncertainty that, even if she is acquitted, the landlord may later seek an eviction pursuant to Section A’s apparent termination of the tenant’s right to occupy. This uncertainty is fundamentally unfair to the presumptively innocent tenants who face prosecution under the statute. 5 By contrast, under Arkansas’ unlawful detainer statute, a tenant wrongfully evicted could obtain a writ of restitution to return to the property. Ark. Code Ann. § 18-60-309(d)(2). Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 19 of 24 PageID #: 274 - 20 - III. BOTH THE CURRENT AND AMENDED VERSIONS OF THE FAILURE TO VACATE STATUTE VIOLATE THE EIGHTH AMENDMENT PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. Plaintiff Purdom is entitled to summary judgment on his claim that the current and amended versions of the criminal eviction statute violate the Eighth Amendment prohibition against cruel and unusual punishment. At their extremes, both versions of the statute raise significant Eighth Amendment concerns. The current version authorizes jail time and an enhanced fine unless the defendant pays the court the amount the defendant allegedly owes to the landlord. The amended version authorizes an indefinite number of convictions and unlimited total fine for those who remain in their homes after they plead not guilty. But at the core of both versions-and Plaintiff Purdom’s Eighth Amendment claim-is their criminalization of what is otherwise universally recognized as a civil property dispute. Determining which acts violate the Eighth Amendment “cruel and unusual” clause requires an evaluation of “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). The evolving standards analysis places substantive limits on the state’s police power by barring punishments that are grossly disproportionate to the crime. Robinson v. California, 370 U.S. 660, 666 (1962) (“[I]n the light of contemporary human knowledge, a law which made a criminal offense of [drug addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”). Arkansas’s criminalization of tenant evictions undeniably lags well behind the evolving standards of decency of both the nation and the state. “Every other US state treats evictions as a purely civil matter,” heavily suggesting that the failure to vacate statute is morally outdated. HRW Rep., supra note 1, at 1. See also Duhon v. State, 299 Ark. 503, 512 (1989) (Purtle, Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 20 of 24 PageID #: 275 - 21 - dissenting) (“Arkansas has won another distinction: it is the only state in the nation which imposes criminal sanctions on a person who does not pay his rent on time. . . The majority has, with all the speed of a crawfish, backed into the 19th century.”). By comparison, when the Eighth Circuit ruled that Arkansas’s use of a “strap” to inflict corporal punishment on prisoners was cruel and unusual, the court relied heavily on the fact that “only two states still permit[ted] the use of the strap,” and that it had been “almost uniformly . . . abolished.” Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968). That Arkansas stands alone in its criminalization of tenant evictions is the clearest indicator that the statute authorizes cruel and unusual punishment. See Solem v. Helm, 463 U.S. 277, 300 (1983) (striking down sentence in part because defendant “was treated more severely than he would have been in any other State”). Within the state, many of the very prosecutors and state judges charged with enforcing the law refuse to do so, or attempt to mitigate the law’s harshest consequences. See Comm’n Rep. at 17; HRW Rep. supra Part I (b)(ii). Prosecutors and local judges are not alone in abandoning the statute. A bipartisan, non-legislative commission charged by the legislature in 2012 with examining the statute recommended its full repeal. Comm’n Rep. at 17. Arkansas state courts are increasingly rejecting the statute. In January 2015, the Pulaski County Circuit Court declared that Ark. Code Ann. § 18-16-101 violated both the state and federal constitutions. State v. Smith, Pulaski County Circuit Court Case No. 2014-2707. Pulaski County was previously responsible for the majority of prosecutions under the statute in Arkansas. Since that ruling, two additional state circuit judges have ruled the statute unconstitutional. State v. Jones, Poinsett County Circuit Court Case No. 2014-389; State v. Bledsoe, Woodruff County Circuit Court Case No. 2014-77-2. It is critical to note that these courts condemned the very fact of criminalizing evictions and struck down the statute as a whole, Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 21 of 24 PageID #: 276 - 22 - rather than limiting their rulings to the registry fee. These decisions have dramatically reduced the number of prosecutions under §18-16-101 across most of the state of Arkansas. Prosecutions are now brought only in a few outlier jurisdictions like Mountain Home. The federal government has also voiced its objection to the statute. The United States Department of Housing and Urban Development has barred the statute’s use by landlords who accept Section 8 vouchers, as well as in federally-subsidized housing. Comm’n Rep. at 16. Though the statutes’ penalties are not per se cruel and unusual, this official discomfort with applying those penalties in the landlord-tenant context provides powerful evidence of the societal judgment that criminalizing the failure to pay rent is inherently disproportionate. See Roper v. Simmons, 543 U.S. 551, 590 (2005) (relying on rarity with which juries impose a sentence as “a significant and reliable objective index of societal mores”) (citing Coker v. Georgia, 433 U.S. 584, 594 (1977) (plurality opinion)) (quotations omitted). Beyond this irrefutable consensus, criminalizing evictions is constitutionally excessive because it does not sufficiently advance the state’s penological interests. Failing to vacate involves a private dispute that does not belong in the criminal system. See Comm’n Rep. at 16- 17. See also Solem v. Helm, 463 U.S. 277, 290-91 (1983) (identifying gravity of offense as significant factor for proportionality review). Disputes over the rightful possessor of property have traditionally been treated as private, civil matters. Coleman v. State, 119 Fla. 653, 663 (1935) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *5) (“[I]f I detain a field from another man, to which the law has given him a right, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public which of us is in possession of the land.”). In Gorman v. Ratliff, the Arkansas Supreme Court, rejecting the right of a landlord to utilize self-help to evict a holdover tenant, recognized that a holdover tenant Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 22 of 24 PageID #: 277 - 23 - properly maintained possession of the property “until the right to possession could be adjudicated” in a civil action “where the weak and strong stand on equal terms.” 289 Ark. 332, 337 (1986). Gorman suggests the impropriety of treating a holdover tenant like a trespasser. Consistent with Gorman’s rationale of not forcing an eviction before a civil court can equitably adjudicate the dispute, Arkansas provides several civil remedies to evict non-paying tenants. These civil proceedings serve precisely the same ends as the failure to vacate statute, except without the stigma and irreversible consequences of a criminal conviction. See Argersinger v. Hamlin, 407 U.S. 25, 47-48 (1972) (Powell, J., concurring) (“The consequences of a misdemeanor conviction, whether they be a brief period served under the sometimes deplorable conditions found in local jails or the effect of a criminal record on employability, are frequently of sufficient magnitude not to be casually dismissed by the label ‘petty.’”) (quotations and citations omitted). Indeed, the primary goal served by the criminal statute appears to be allowing landlords to bypass these civil proceedings and instead “to use the resources of the criminal justice system to get restitution for an alleged breach of contract.” Comm’n Rep. at 16; See also Id. at 17 (finding that the statute “criminalizes breach of a contract, using the criminal law to enforce a civil matter”). Such disparate treatment is hardly a valid penological objective. Thus, the marginal deterrent or retributive benefits, if any, of the statute cannot justify branding an individual a “criminal” for a mere property dispute. Robinson, 370 U.S. at 667 (“Even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.”). The statute itself does not permit courts to evict a tenant; it is only the threat of criminal prosecution and escalating deprivations of liberty and property that leverage a tenant’s eviction. Extortion cannot be a valid penological objective. Criminalizing a failure to vacate the premises Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 23 of 24 PageID #: 278 - 24 - is therefore cruel and unusual punishment under the state and federal constitution, and the Court must declare the statute invalid. CONCLUSION It is no coincidence that Arkansas is the only state in the country that criminalizes the eviction process. Every other state, and indeed, most jurisdictions in Arkansas recognize that such a statute has no place in civilized society. Plaintiff respectfully urges this court to declare the current and amended statutes unconstitutional under state and federal law, and to enjoin its enforcement permanently in the City of Mountain Home. Respectfully submitted, Mitchell Purdom By: /s/ Jason Auer (Ark. Bar No. 2011304) LEGAL AID OF ARKANSAS 1200 Henryetta Street Springdale, AR 72762 Telephone: (800) 967-9224 ext. 6318 jauer@arlegalaid.org /s/ Amy Pritchard (Ark. Bar No. 2010058) UALR Bowen Legal Clinic 1201 McMath Avenue Little Rock, AR 72202 Telephone: (501) 324-9966 apritchard@ualr.edu /s/ Brandon Buskey* (AL ASB2753-A50B) American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th FL New York, NY 10004 (212) 549-2654 bbuskey@aclu.org Attorneys for Plaintiff Case 3:16-cv-03072-TLB Document 53-1 Filed 05/08/17 Page 24 of 24 PageID #: 279 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION MITCHELL PURDOM PLAINTIFF VS. NO. 16-cv-3072 TLB ROGER MORGAN in his official capacity as DEFENDANTS City Attorney for Mountain Home PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Rule 56.1 of the Local Rules of the U.S. District Court for the Western District of Arkansas, Plaintiff Mitchell Purdom submits in support of its motion for summary judgment this statement of material facts as to which there is no genuine dispute. Because Defendant Morgan failed to file an Answer, all factual allegations in the Amended Complaint are considered admitted. Fed. R. Civ. P. 8(b)(6). I. PLAINTIFF MITCHELL PURDOM 1. Mitchell Purdom’s sole source of income is Social Security Disability in the amount of $1,200 a month. 2. Purdom and his landlords, Don and Judy Lewis, entered into a 12-month written lease agreement for a house located at 949 Tanglewood, Mountain Home, Arkansas on November 3, 2015. The agreed upon monthly rent payment was $750.00. The rent was due by the third day of each month. 3. Purdom moved into the house on or about November 3, 2015. 4. Paragraph Six of the lease agreement states that the tenant is not allowed to have a pet. Case 3:16-cv-03072-TLB Document 53-2 Filed 05/08/17 Page 1 of 5 PageID #: 280 - 2 - 5. Purdom is diagnosed with severe depression. In order to cope with his depression, Purdom takes several medications and attends a weekly therapy session with a clinical psychologist. 6. On April 8, 2016, Purdom’s clinical psychologist, Phillip W. Brown, Ph.D., drafted a letter recommending that Purdom keep an emotional support dog wherever he lives. According to Dr. Brown, Purdom needs the dog to help cope with depression brought on by feelings of social isolation. 7. Purdom gave Dr. Brown’s letter to the Lewises on April 8, 2016. The Lewises refused to accept the letter and told Purdom that he was not allowed to have a dog. 8. In May 2016, Purdom contacted the Arkansas Fair Housing Commission (“AFHC”) and filed a complaint against Lewises for their failure to grant his reasonable accommodation request. The AFHC began investigating shortly thereafter. 9. After the Lewises learned of the Fair Housing investigation, they approached Purdom with an amended lease agreement on June 2, 2016. The amended lease agreement stated Purdom would be allowed an emotional support animal if he paid a non-refundable $500.00 pet deposit. 10. When Purdom refused to sign the amended Lease Agreement or pay the $500.00 pet deposit, the Lewises immediately handed Purdom a 10-day notice to vacate pursuant to Ark. Code Ann. § 18-16-101. 11. Purdom tendered his rent payment for June 2016 in early May. The Lewises accepted the payment and were to hold Purdom’s check until rent became due on June 3, 2016. However, the Lewises returned Purdom’s check simultaneously as they served Purdom with the 10-day notice to vacate on June 2, 2016. Case 3:16-cv-03072-TLB Document 53-2 Filed 05/08/17 Page 2 of 5 PageID #: 281 - 3 - 12. Purdom filed the original Complaint in this action on June 13, 2016. 13. At the time of the filing of the original Complaint, Purdom was current on his rent. 14. Purdom vacated the property on August 8, 2016, nearly two months after the notice-to-vacate period. II. DEFENDANT CITY OF MOUNTAIN HOME1 15. The Mountain Home City Attorney prosecutes tenants under the Criminal Eviction Statute, and Mountain Home’s district court regularly hears criminal eviction cases. 16. Between May 1, 2015 and June 9, 2016, the Mountain Home division of Baxter County District Court heard 25 prosecutions of criminal eviction cases. III. ARKANSAS’ CRIMINAL EVICTION STATUTE 17. Arkansas is the only state in the country that criminalizes the eviction process.2 18. Under § 18-16-101 of the Arkansas Code, a tenant who is alleged to be one day late on rent can be charged with and found guilty of a misdemeanor if the tenant has not vacated the residence after 10 days’ notice. Ark. Code Ann. § 18-16-101 (b). 19. The class of misdemeanor, and thus the penalty the defendant faces, varies according to whether the defendant pays a registry fee to the court. Tenants who plead not guilty and remain in the leasehold premises are required to deposit the disputed rent amount into the 1 Plaintiff Purdom named the Lewises as defendants in the original Complaint. Plaintiff and the Lewises settled those claims with prejudice prior to Plaintiff’s filing of his Amended Complaint. 2 Human Rights Watch, Pay the Rent or Face Arrest: Abusive Impacts of Arkansas’s Draconian Evictions Law 1 (Feb. 2013) [hereinafter “HRW Rep.”]. http://www.hrw.org/sites/default/files/reports/us0113arkansas_reportcover_web.pdf; Non- Legislative Commission for the Study of Landlord-Tenant Laws, Report, 35 U. Ark. Little Rock L. Rev. (2013) [hereinafter “Comm’n Rep.”] Case 3:16-cv-03072-TLB Document 53-2 Filed 05/08/17 Page 3 of 5 PageID #: 282 - 4 - registry of the court, and they must continue making rental payments into the registry throughout the proceedings. Ark. Code Ann. § 18-16-101(c)(1). 20. If a defendant is subsequently convicted and has paid the required fee, the defendant is guilty of an unclassified misdemeanor and must also pay a statutory fine of $25 per each day the tenant failed to vacate the leasehold premises. Ark. Code Ann §18-16-101(b)(2); Ark. Code Ann. § 5-4-401. 21. However, if a convicted defendant has not paid the required fee, then the tenant is guilty of a Class B misdemeanor, which carries a sentence of up to 90 days, along with a fine of up to $1000. Ark. Code Ann. §18-16-101(c)(3); Ark. Code Ann. § 5-4-401. 22. When originally enacted in 1901, the statute authorized only a variable fine of between $1 and $25 for each day the tenant failed to vacate. See Duhon v. State, 299 Ark. 503, 505 (Ark. 1989). In 2001, the Arkansas General Assembly changed the fee to a flat $25 per day, added the pre-adjudication fee, and defined a Class B misdemeanor for defendants who do not pay that fee. 23. Since this amendment, several state trial courts have declared the statute unconstitutional, which has substantially decreased enforcement of the statute across the state. IV. 2017 AMENDMENTS 24. In 2017, after the judgments invalidating the criminal eviction statute, the Arkansas General Assembly partially amended § 18-16-101, re-adopting the 1901 version, while continuing to criminalize the civil eviction process. Thus, Act 159 of 2017 eliminated the registry requirement and the Class B misdemeanor for failing to pay the registry fee. 25. However, Act 159 again authorizes a separate criminal offense for each day a tenant fails to vacate the property. For each offense, the statute authorizes the judge to impose a Case 3:16-cv-03072-TLB Document 53-2 Filed 05/08/17 Page 4 of 5 PageID #: 283 - 5 - fine between $1 and $25. The statute does not cap or otherwise limit either the number of convictions or the total fines a defendant may face for remaining on the property after a notice to vacate. 26. Act 159 is scheduled to go into effect on July 31, 2017. It does not contain any provision applying its terms retroactively to conduct committed before its effective date. Respectfully submitted, Mitchell Purdom By: /s/ Jason Auer (Ark. Bar No. 2011304) LEGAL AID OF ARKANSAS 1200 Henryetta Street Springdale, AR 72762 Telephone: (800) 967-9224 ext. 6318 jauer@arlegalaid.org /s/ Amy Pritchard (Ark. Bar No. 2010058) UALR Bowen Legal Clinic 1201 McMath Avenue Little Rock, AR 72202 Telephone: (501) 324-9966 apritchard@ualr.edu /s/ Brandon Buskey* (AL ASB2753-A50B) American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th FL New York, NY 10004 (212) 549-2654 bbuskey@aclu.org Attorneys for Plaintiff Case 3:16-cv-03072-TLB Document 53-2 Filed 05/08/17 Page 5 of 5 PageID #: 284